Rakesh Kumar and Others vs State of H.P.

Sureshwar Thakur, J.—These applications have been filed by the bail applicants under Section 438 of the Code of Criminal Procedure for grant of anticipatory bail as they apprehend their arrest for their allegedly having committed offences punishable under Sections 323, 324, 341, 379, 386, 392, 506 read with Section 34 IPC in case F.I.R. No. 23 of 2015 of 24.2.2015 registered at Police Station Sawarghat, District Bilaspur and under Sections 392, 386, 379, 506, 341, 323, 324 read with Section34 IPC in case F.I.R. No. 35 of 2015 of 25/02/2015 registered at Police Station Barmana (Police Choki Kharsi, District Bilaspur), H.P.

The bail petitioners are the authorized representatives of the financer of trucks to the complainants. M/s. Hinduja Leyland Finance Company Ltd. (finance company) entered into a hire purchase agreement with the complainants/borrowers whereunder the trucks were to remain under hypothecation with the financer till the clearance or repayment of loan by the borrowers to the financer, besides it also gave latitude to the financer to invoke clauses 14.2 and 14.3 of the hire purchase agreement entered into inter se the financer and borrowers/complainants. The borrowers/complainants were under a bounden obligation under Clause 14.2 to diligently, promptly and within the frame work of the time schedule defray to the financer the loan instalments. In case of occurrence of default in the payment of loan instalments by the borrowers/complainants to the financer, the financer was bound to issue notice to the borrower/complainant, calling upon him/warranting him to clear the outstanding dues/loan instalment. However, as is apparent the borrowers committed default in the timely defrayment of the outstanding loan instalments to the financer and thereupon as is apparent from a reading of clause 14.2 and 14.3, which are extracted hereinafter,

14.2. In the event of failure of the Borrower in complying with the demand in the said notice the Borrower shall be bound to surrender the asset to the Lender at the cost of Borrower at such location, as the lender may designate, in the same condition in which it was originally delivered to the Borrower, ordinary wear and tear excepted, failing which the lender shall be entitled to seize the asset wherever it is without any further notice. The borrower shall not prevent or obstruct the lender from taking the possession of the asset. For this purpose, the lender''s authorized representatives, employees, officers and agents will have unrestricted right to entry and shall be entitled to enter upon the premises, or garage, or godown, where the asset shall be lying or kept, and to seize the asset. In the event of the borrower not cooperating, the lender if, necessary have the right to break open any such place where the asset is believed to be kept and to seize the asset. The lender will be well within its rights to use tow-van or any carrier to carry away the asset. The borrower shall be liable to pay any towing charges and other such expenses incurred by the lender in connection with the seizure of the assets and for its sale etc.

14.3. After seizure of the asset by the lender or surrender by the borrower, the lender''s authorized representatives, employees, officer and agents will prepare an inventory of the asset. The lender will send a notice after seizure or surrender of the asset by the borrower along with a copy of the inventory, granting the borrower 10 days time to settle the contract and to take back the vehicle. The borrower shall in the event of failing to settle the contract within the time limit mentioned above, deliver all original documents relating to the asset including the RC book, tax token, permit and insurance certificate/policy etc. in the case of asset being vehicle, if the said documents were not available in the vehicle at the time of seizure or surrender and shall render all assistance including execution of necessary documents for transfer of the asset in favour of the lender or its nominees or its agents or the purchaser of the asset identified by the lender. If however, the borrower fails to render necessary assistance for transfer of the asset, the lender shall be entitled to taken all such steps unilaterally as may be necessary to facilitate early sale of the asset.

with the complainants/borrowers having not complied with the mandate of the notice served upon them by the financer, sequelly with the right vested in the financer to seek the surrender of the asset to the latter in the same condition in which it was delivered to the borrower, besides, the financer being also authorized to take possession of the asset/trucks hypothecated to the financer under the hire purchase agreement through its authorized representatives equally conferred with a compatible right to have an unrestricted entry into the premises wherein the hypothecated property was kept by the borrowers, as also with the right to seize it. Consequently, in consonance with the mandate and contemplation envisaged in clauses 14.2 and 14.3 extracted hereinabove the financer authorized/designated their authorised representatives to carry ahead the mandate of clause 14.2 and 14.3 preceding whereof a notice was served upon the borrower by the financer and which having remained uncomplied hence paving way for the financer to proceed to exercise the rights vested in the hereinabove extracted clauses of the hire purchase agreement. Therefore, the act of the duly authorized representatives of the financer in seizing in consonance with the mandate of the relevant germane clauses of the hire purchase agreement inasmuch as theirs repossessing the hypothecated property/trucks from the premises of the borrowers/complainants attains legitimization. Since the borrowers/complainants are a party to the hire purchase agreement wherein the clause vesting a right of retaking of possession of the hypothecated vehicle is invested/vested in the financer who then choose to exercise the right through a duly nominated authorized representatives then it is open to the borrower/complainant to proceed to take appropriate action in a competent Court of law, the remedy is not, especially when the borrower/complainant is a signatory to the hire purchase agreement wherein as referred to hereinabove the germane clause vesting a right in the financer to take possession of the hypothecated vehicles exists, to on omission on their part to comply with the demand notice which uncontrovertdly at this stage has remained uncomplied with, too hence complain of a penal act having been committed at the instance of the financer. Consequently, when at this stage no material has been placed on record by the prosecution disclosing that in case the facility of bail is accorded to the bail applicants, there is every likelihood of their fleeing from justice or tampering with prosecution evidence, accordingly, the order of 4.3.2015 is made absolute subject to fulfilling of the following conditions:

"(i) That the bail applicants shall join the investigation, as and when required by the investigating agency;

(ii) That they shall not directly or indirectly advance any threat, inducement or promise to any person acquainted with the facts of the case and shall not tamper with the prosecution evidence.

(iii) That they shall not leave India without the prior permission of the Court.

(iv) That they shall deposit their passports, if any, with the Police Station, concerned;

(v) That in case of violation of any of these conditions, the bail granted to the petitioners shall be forfeited and they shall be liable to be taken into custody; and

(vi) That they shall apply for bail afresh when the challan is filed before the trial Court."

With the aforesaid observations, the present petitions stand disposed of. It is, however, made clear that the findings recorded hereinabove will have no bearing on the merits of the case.